Case Number(s): 11-O-15815
In the Matter of: Kelly Wilson Bixby, Bar # 53166, 2212 Century Hill, Los Angeles, Ca. 90067, A Member of the State Bar of California, (Respondent).
Counsel For The State Bar: Hugh Radigan, Bar # 94251, 1149 S. Hill Street 8th floor, Los Angeles, Ca. 90015, 213/765-1297
Counsel for Respondent: Hugh E. Knowlton, Bar # 41434, 2026 S. Bentley Ave., Los Angeles, Ca. 90025, 310/479-8789
Submitted to: Assigned Judge at State Bar Court Clerk’s Office Los Angeles
Filed: February 15, 2012
checked. PREVIOUS STIPULATION REJECTED
Note: All information required by this form and any additional information which cannot be provided in the space provided, must be set forth in an attachment to this stipulation under specific headings, e.g., "Facts," "Dismissals," "Conclusions of Law," "Supporting Authority," etc.
1. Respondent is a member of the State Bar of California, admitted December 14, 1972.
2. The parties agree to be bound by the factual stipulations contained herein even if conclusions of law or disposition are rejected or changed by the Supreme Court.
3. All investigations or proceedings listed by case number in the caption of this stipulation are entirely resolved by this stipulation and are deemed consolidated. Dismissed charge(s)/count(s) are listed under "Dismissals." The stipulation consists of 10 pages, not including the order.
4. A statement of acts or omissions acknowledged by Respondent as cause or causes for discipline is included under "Facts."
5. Conclusions of law, drawn from and specifically referring to the facts are also included under "Conclusions of Law".
6. The parties must include supporting authority for the recommended level of discipline under the heading "Supporting Authority."
7. No more than 30 days prior to the filing of this stipulation, Respondent has been advised in writing of any pending investigation/proceeding not resolved by this stipulation, except for criminal investigations.
8. Payment of Disciplinary Costs-Respondent acknowledges the provisions of Bus. & Prof. Code §§6086.10 & 6140.7. (Check one option only):
checked. Costs are awarded to the State Bar.
<<not>> checked. Costs are waived in part as set forth in a separate attachment entitled "Partial Waiver of Costs".
<<not>> checked. Costs are entirely waived.
(9) ORDER OF INACTIVE ENROLLMENT:
The parties are aware that if this stipulation is approved, the judge will issue an order of inactive enrollment under Business and Professions Code section 6007, subdivision (c) (4), and Rules of Procedure of the State Bar, rule 5.111(D)(1).
Respondent has been diagnosed with medical condition, which is an impairment of brain function. Respondent’s physicians are of the opinion that he has suffered from this condition for 4-5 years and that it should be considered directly responsible for his misconduct in the complained of matters. A confidential letter from Respondent’s physician(s) confirming the foregoing shall be maintained in OCTC file.
Respondent is presently cognizant of the severity of his misconduct in the complained of matters, for which he deeply apologizes to the Court, to the State Bar, his colleagues and to others in this proceeding.
(Effective January 1, 2011)
Disbarment.
IN THE MATTER OF: Kelly Wilson Bixby, State Bar No. 53166
STATE BAR COURT CASE NUMBER: 11-O-15185
FACTS AND CONCLUSIONS OF LAW.
Respondent admits that the following facts are true and that he is culpable of violations of the specified statutes and/or Rules of Professional Conduct.
Case No. 11-O-15185 (Complainant: Mandie Saner)
FACTS:
1. In or about October 2006, Albert Duclos (Duclos) employed Respondent to represent him in a dissolution of marriage proceeding filed in Los Angeles County, case number BD 375 423 entitled Merry Duclos v Albert Duclos. During the dissolution proceeding, the community property residence
was sold and other division of property was made. On or about April 11, 2008, pending final judgment, Respondent was entrusted with $294,314.97 to be maintained in his client trust account on behalf of Albert Duclos.
2. During the proceedings, the Duclos’ real property suffered some flood damage for which the insurance carrier issued payment in the sum of $29, 735.95. Duclos entrusted the payment to Respondent by issuing cashier’s check # 00165915 to him to be maintained in his client trust account. Respondent did not deposit the check into his trust account because there was and apparently still is a controversy over whether the insurance payment to Duclos was an erroneous double payment. In June 2009, Duclos became ill. On December 9, 2009, Duclos died before he received the funds.
3. Instead, Respondent placed the check in his file where it was discovered in July 2011. In September 2011, at the suggestion of the attorney for the Estate of Duclos, Respondent deposited the check to his trust account and then immediately paid the sum of $29, 735.95 to the executor of the estate.
4. On June 21, 2010, Mandie Saner, as executor of the will of decedent, filed a Petition for Probate in Los Angeles Superior Court, case number YYP011038. Attorney Linda Retz, (Retz) attorney for petitioner had made written request on March 31,2010 and again on October 6, 2010, for the return of the funds to the Estate ofDuclos. R failed to comply. Subsequent to being entrusted with the Duclos community property funds in April 2008, to be maintained in his client trust account, Respondent willfully misappropriated the $ 294, 314.97 in funds.
5. On April 28, 2011, a Motion to Reclaim Property of the Probate Estate filed by Retz was heard. On June 8, 2011, the Court entered an Order Reclaiming Property of the Estate in the sum of $317,800.53.
CONCLUSIONS OF LAW:
6. By failing to promptly pay or deliver as requested by the client, any funds, securities, or other properties in the possession of the member which the client is entitled to receive, Respondent willfully violated rule 4-100(B)(4) of the Rules of Professional Conduct.
7. By willfully misappropriating the Duclos community property funds, and by failing to provide Duclos or Saner an accounting of the entrusted funds, Respondent breached his fiduciary duty to Duclos and then to his estate representative, thereby committing an act involving moral turpitude, dishonesty or corruption in willful violation of Business and Professions Code 6106.
PENDING PROCEEDINGS.
The disclosure date referred to, on page 2, paragraph A(7), was January 3, 2012.
AUTHORITIES SUPPORTING DISCIPLINE.
Standard 1.3 of the Standards for Attorney Sanctions for Professional Misconduct (Standards) provides that the primary purposes of attorney discipline are, " the protection of the public, the courts and the legal profession; the maintenance of high legal professional standards by attorneys and the preservation of public confidence in the legal profession."
Standard 2.2(a) provides that culpability of a member of willful misappropriation of entrusted funds shall result in disbarment. ’ Only if the amount of the funds misappropriated is insignificantly small or if the most compelling mitigating circumstances predominate, shall disbarment not be imposed.
Standard 2.3 provides that culpability of a member of an act of moral turpitude, fraud, or intentional dishonesty toward a court, client, or another person, or of concealment of a material fact to a court, client, or another person shall result in actual suspension or disbarment depending upon the extent to which the victim of the misconduct is harmed or misled and depending upon the magnitude of the act of misconduct and the degree to which it relates to the member’s acts within the practice of law.
Here, the amount of the funds that respondent misappropriated is not insignificant. The contrary is true. Further, Respondent in committing acts of misconduct, committed acts of moral turpitude. The mitigating circumstances are not sufficiently compelling to justify a deviation from the Standards for Attorney Discipline. The parties submit that Respondent’s misconduct, and the aggravating circumstances surrounding the misconduct warrant disbarment.
Case Law
The Supreme Court has repeatedly held that disbarment is the usual level of sanction for the willful misappropriation of funds. (Grim v State Bar (1991) 53 Cal.3d 21; Edwards v State Bar (1990) 52 Cal. 3d 28, 37; Howard v State Bar (1990) 51 Cal. 3d 215, 221; Chang v State Bar (1989) 49 Cal. 3d 114, 128.), In t he Matter of Priamos (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 824.
COSTS OF DISCIPLINARY PROCEEDINGS.
Respondent acknowledges that the Office of the Chief Trial Counsel has informed respondent that as of October 2 I, 2011, the prosecution costs in this matter are $2982. Respondent further acknowledges that should this stipulation be rejected or should relief from the stipulation be granted, the costs in this matter may increase due to the cost of further proceedings.
Case Number(s): 11-O-15185
In the Matter of: Kelly Wilson Bixby
By their signatures below, the parties and their counsel, as applicable, signify their agreement with each of the recitation and each of the terms and conditions of this Stipulation Re Facts, Conclusions of Law and Disposition.
Signed by:
Respondent: Kelly W. Bixby
Date: 1/24/12
Respondent’s Counsel: Hugh E. Knowlton
Date: 1/24/12
Deputy Trial Counsel: Hugh Radigan
Date: February 1, 2012
Case Number(s): 11-O-15185
In the Matter of: Kelly Wilson Bixby
Finding the stipulation to be fair to the parties and that it adequately protects the public, IT IS ORDERED that the requested dismissal of counts/charges, if any is GRANTED without prejudice, and:
checked. The stipulated facts and disposition are APPROVED and the DISCIPLINE RECOMMENDED to the Supreme Court.
<<not>> checked. The stipulated facts and disposition are APPROVED AS MODIFIED as set forth below, and the DISCIPLINE IS RECOMMENDED to the Supreme Court.
<<not>> checked. All Hearing dates are vacated.
The parties are bound by the stipulation as approved unless: 1) a motion to withdraw or modify the stipulation, filed within 15 days after service of this order, is granted; or 2) this court modifies or further modifies the approved stipulation. (See rule 5.58 (E) & (F), Rules of Procedure.) The effective date of this disposition is the effective date of the Supreme Court order herein, normally 30 days after the file date. (See rule 9.18(a), California Rules of Court.)
Respondent Kelly Wilson Bixby is ordered transferred to involuntary inactive status pursuant to Business and Professions Code section 6007, subdivision (c)(4). Respondent’s inactive enrollment will be effective three (3) calendar days after this order is served by mail and will terminate upon the effective date of the Supreme Court’s order imposing discipline herin, or as provided for by rule 5.111(D)(2) or the Rules of Procedure of the State Bar of California, or as otherwise ordered by the Supreme Court pursuant to its plenary jurisdiction.
Signed by:
Judge of the State Bar Court: Richard Honn
Date: 2-15-12
(Effective January 1, 2011)
Disbarment
Order
[Rules Proc. of State Bar; Rule 5.27(B); Code Civ. Proc., § 1013a(4)]
I am a Case Administrator of the State Bar Court of California. I am over the age of eighteen and not a party to the within proceeding. Pursuant to standard court practice, in the City and County of Los Angeles, on February 15, 2012, I deposited a true copy of the following document(s):
STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION
AND ORDER APPROVING
in a sealed envelope for collection and mailing on that date as follows:
checked. by first-class mail, with postage thereon fully prepaid, through the United States Postal Service at Los Angeles, California, addressed as follows:
HUGH E KNOWLTON ESQ
2026 S BENTLEY AVE
LOS ANGELES, CA 90025-5618
Checked. by interoffice mail through a facility regularly maintained by the State Bar of California addressed as follows:
Hugh G. Radigan, Enforcement, Los Angeles
I hereby certify that the foregoing is true and correct. Executed in Los Angeles, California, on February 15, 2012.
Signed by:
Julieta E. Gonzales
Case Administrator
State Bar Court